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Court of Criminal Appeals of Texas.

Ex Parte Steven Mark WEINSTEIN, Applicant.

No. WR–78,989–01.

    Decided: January 29, 2014

Randy Schaffer, Houston, TX, Attorneys for Applicant. Devon Anderson, District Attorney Harris County, Houston, TX, Attorneys for the State.


Applicant was convicted of murdering Jerry Glaspie. He filed a post-conviction application for a writ of habeas corpus, alleging that he was denied due process because (1) the State failed to disclose that its key witness, Nathan Adams, had hallucinations and delusions, and (2) the State presented false testimony when Mr. Adams lied about not having hallucinations and delusions. The habeas judge initially filed findings of fact and conclusions of law recommending that we deny relief, but we remanded the case and asked her to determine (1) whether Nathan Adam's testimony was false, and, if so, (2) whether applicant had shown a reasonable likelihood that the false testimony affected the judgment of the jury.1 In revised findings, the judge found that the State unknowingly presented false testimony when Nathan Adams testified that he did not suffer from auditory or visual hallucinations. The judge also found that Mr. Adams was a key witness in establishing applicant's intent to murder. She concluded that there was a reasonable likelihood that the outcome of the trial would have been different had Mr. Adams admitted to having hallucinations.

We adopt the habeas judge's factual findings that Adams's testimony about his lack of delusions was false, but we conclude that applicant has failed to prove that Adams's false testimony was “material,” i.e., reasonably likely to have affected the jury's verdict.


The evidence at trial showed that, in mid–2006, applicant and Jerry Glaspie drove from Houston to Dallas planning to use applicant's $14,000 to buy methamphetamine. The drug deal did not go as planned. Although Jerry instructed applicant to bring cash, applicant tried to buy the meth with a $14,000 cashier's check. “[T]he banks were closed because it was the weekend and so there was no place to cash the check.” Unwilling to wait for the banks to open, applicant left Jerry in Dallas with his check, expecting him to return to Houston with either meth or money.

Jerry remained in Dallas, so applicant called him “four or five times a day,” but Jerry “stopped answering the phone.” Then applicant started calling Jerry's friends in Houston. Around November, applicant contacted Jerry's friends on Manhunt,2 explaining how Jerry ripped him off and looking for ways to find him. Applicant “was very upset and angry.” He tried to get a mutual friend to call Jerry and tell him that someone in Houston wanted to make a major methamphetamine buy. Applicant planned to “surprise” Jerry when he appeared and demand his money back. When asked what he would do if Jerry didn't have his money, applicant said, “Oh, well, we'll just scare him.”

Applicant's plans grew more violent. At one point, he suggested driving to Dallas and “tak[ing] him for a ride somewhere.” If Jerry didn't have his money, applicant said that “maybe we can hurt him. We can do something, just do stuff just to scare him, just to get him to, you know, cough up the money.” In another plot, applicant asked his interior decorator to help bring Jerry back “with or without [his] consent” by “giving him some drug or maybe using a taser gun.” Applicant also talked about using restraints: “[H]e was [going] to have to tie him up ․ and then put him in the car and bring him to Houston.”

Jerry eventually returned to Houston without the drugs or applicant's $14,000. Although he was warned to stay away from applicant, Jerry told his friends that he had “made arrangements to pay him off in installments,” so “[d]on't worry about it.”

On the morning of January 29, 2007, Jerry borrowed his roommate's 4–Runner to visit some people, including applicant. Jerry never returned. Worried about Jerry's disappearance, his roommate filed a missing persons report. A few weeks later, police found the 4–Runner in a church parking lot. Although Jerry's friends feared that he was at applicant's house, no one called the police because they didn't want cops “poking around” in their drug business.

Near the end of February, residents in applicant's townhouse complex noticed an odor coming from applicant's garage. It was so strong that the mailman refused to deliver the mail. When his neighbors repeatedly asked about the smell, applicant said that his ex-roommate had hidden food all over the house, but he was trying to clean up all the rotting food.

On March 8th, HPD Officer Ladewig was dispatched to applicant's house to check out the foul odor coming from the garage. She noticed “this awful, horrible smell” and “a big swarm of flies” coming in and out of applicant's garage. Although she recognized the smell of a dead body, she was not “100 percent sure” that it was anything more than a dead animal, so she did not try to contact applicant. Two days later, she was again dispatched to applicant's home. Convinced that she was smelling a dead body, she asked her supervisor to join her, and together they knocked on applicant's door and used their loudspeaker, but applicant did not respond. Although they wanted to make a forced entry, the D.A.'s Office told them that they could not enter without a search warrant.

At 5:00 a.m. on March 22nd, Officer Ladewig was on patrol near applicant's house. Still convinced that the odor coming from applicant's garage was from a dead body, she drove her partner to the house to get his opinion. When they arrived, applicant was standing in his front yard. He told the officers that his ex-roommate “had left rotting meat and trash all over” the house and garage. While telling his story, applicant “was stuttering” and “appeared very upset,” and “nervous.” When Officer Ladewig asked to see inside the garage, applicant refused because “he was too tired.”

The next afternoon, a different officer was called to follow up on another odor complaint at applicant's house. He “immediately identified that smell as that of a dead body.” He also smelled “the strong odor of a cleaning agent, like bleach,” indicating that somebody “was trying to clean up after what they did.” That officer opened applicant's garbage can and saw several empty bottles of bleach and other cleaning fluids. He couldn't contact applicant, but finally officers called for a cadaver dog who “alert[ed]” at applicant's garage, indicating that there were human remains in the garage. After obtaining a search warrant, the officers cut through applicant's gate and entered his unlocked house.

They discovered applicant lying on a bed upstairs. He “appeared to be shaking, like he was having a seizure.” A police scanner was on the bed next to him. He was taken away while officers entered the garage and found applicant's car. As an officer went to the trunk of the car, he saw a bent coat hanger securing the trunk lid shut. He opened the trunk and found a naked, “badly decomposed,” body. An engine hoist was nearby. When they searched the rest of the house, the officers found an empty oil drum in the kitchen; two semiautomatic guns near the headboard of applicant's bed; a respirator on the bedroom floor; and baking soda, cleaning supplies, bug killers, and deodorizers near the entrance to the garage.

Dental and fingerprint evidence confirmed that the body was that of Jerry Glaspie. Jerry had no clothes on. His wrists and legs were bound together with metal shackles, rope, chains, and wire. There were “loops of duct tape” around his lower neck that had “probably slipped off from his lower face.” The Medical Examiner (M.E.) determined that Jerry's death was a homicide, although he could not say with 100% certainty that Jerry did not die of natural causes. The bones in Jerry's neck had begun to disarticulate,3 but the M.E. could not determine if this was caused by strangulation or natural decomposition. While the exact cause of death could not be determined, the M.E. said that Jerry's death could have been caused either by strangulation or by asphyxiation from the duct tape.

Nathan Adams testified that he met applicant in a tank for jail detainees with a medical illness. Applicant began talking about his case and that jogged Adams's memory about a television story he had seen reporting that a dead body had been found in a car trunk after the neighbors had complained about the smell. Adams testified that he did not read any additional news coverage, nor had he obtained any information about the crime from another source. Adams testified that applicant told him that Jerry stole $14,000 from him when he went to Dallas to buy a “car.”4 Applicant told Adams conflicting stories about how Jerry died,5 but his second story was “that he had strangled the gentleman and had placed him in the trunk.” Adams testified that applicant demonstrated “on [him] ․ the way he did it:”

[H]e wrapped a towel a certain way and he asked me to stand up, which I did, and he came behind me and put the towel in a certain way around my neck and immediately when he pulled it, it was extremely painful. And I knew that if that was applied to anybody that they would be in serious trouble immediately.

Adams explained that applicant was a massage therapist and claimed to have “specialized knowledge of pressure points, pressure points in the body whether it was ․ to help somebody or to hurt somebody.” Applicant told Adams that he put Jerry's body in the trunk of his car but the smell became horrible, so he bought dry ice and sprayed insecticides to keep the smell down. He was scared because the smell was so bad that he “stayed in his house and never left his house again until the police came.”

Adams testified that applicant explained why he didn't move the body. “He had a problem because he couldn't get the trunk open ․ I guess the body had swelled so much that he could no longer open the trunk․ [S]o he went to a ․ store, to buy an engine hoist to try and pry it open.” Applicant went into detail about the engine hoist, explaining how he had to go to the store multiple times because it was missing instructions and necessary parts.

On cross-examination, the defense extensively impeached Adams's credibility. He had been in-and-out of jail since the mid 1990s.6 In addition, Adams admitted that he was testifying in exchange for a reduced charge from assault on peace officer, a third-degree felony, to simple assault with credit for time served. In fact, it was Adams who initially contacted the District Attorney, writing several letters offering to testify against applicant in exchange for a deal. He also admitted to having seen the indictment-one that charged applicant with “suffocating” Jerry Glaspie-while in jail. Adams admitted that he was again in custody because he failed to appear to testify and was brought to the courtroom in handcuffs.

Furthermore, Adams admitted that he suffered from bipolar disorder, for which he takes Depakote and Seroquel. But when he was asked whether his mental illness “has ever caused you to have any type of audi[tory] or visual hallucinations,” Adams responded: “Not at all. No, sir, not at all.” And when asked if he ever experiences false memories, Mr. Adams responded in the negative. Finally, when asked if his bipolar disorder only affected his mood, Mr. Adams responded: “Yes, sir, it's just-it's just mood swings is what it is.”

In closing arguments, the defense argued that applicant did not intend to kill Jerry. Counsel claimed that the State failed to prove what happened on the day Jerry died because the Medical Examiner could not completely rule out a natural cause of death. Thus, it was possible that applicant put Jerry in the trunk just to scare him, without any intent to kill him.7 The defense also attacked Adams's testimony, arguing that Adams was the only witness supporting the indictment's theory that Jerry was strangled, but that Adams was not a credible witness because he had an extensive criminal record and had every reason to lie.

The State's closing focused on applicant's motive for killing Jerry and the comments he made to his friends while Jerry was still in Dallas. The prosecutor tallied up the evidence showing that Jerry was tied up, alive and struggling. And, the prosecutor argued, it did not matter exactly how Jerry died: “Was he standing? Was he sitting? I don't know and I don't have to prove that to you. Because the bottom line is the evidence is consistent with everything Nathan Adams told you.” The prosecutor then turned to Adams's testimony, admitting that Adams was not “altruistic” and that he had “an agenda” in testifying. But “he knew things that there's only one way he could know about.” The prosecutor pointed out that

[t]here wasn't anything in the news about 14 grand and a death. It was a body found in the trunk. You didn't hear any testimony that there was ever anything released about how the body was killed. There was nothing. But here comes Mr. Adams and suddenly he knows things that there's no way else he could know unless he got it from the horse's mouth.

He pointed to additional information that Adams could have known only from applicant: He knew about the use of dry ice and insecticide to cover the smell of the body and he knew about the engine hoist in applicant's garage. The prosecutor argued that Adams demonstrated his credibility: “He told you everything [applicant] had told him. He didn't embellish. He didn't say this was over drugs․ If he was making up his testimony, don't you think he would have fitted it a little bit better?”

The jury convicted applicant of murder and sentenced him to thirty years' imprisonment and a $10,000 fine. Applicant challenged the sufficiency of the evidence on appeal, but the Fourteenth Court of Appeals affirmed his conviction.8

After we remanded applicant's habeas application to the convicting court, the habeas judge9 made “revised” findings of fact and conclusions of law. She found that Adams testified falsely in “denying that he had any audi[tory] or visual hallucinations and did not remember things that didn't really happen .” She listed numerous reports that said Adams suffered from delusions and hallucinations.10 Although the judge found that neither the State nor the defense were aware that Adams's testimony was false, she found that “[t]he State created the false impression that Adams was bipolar but never had any type of hallucinations.”

On the question of materiality, the trial judge concluded that “Adams was the key prosecution witness, as he was the only person who testified that applicant admitted causing Glaspie's death. The State used Adams's testimony to establish that applicant intentionally killed Glaspie.”11 While noting that defense counsel “elicited on cross-examination that Adams received psychiatric care and medication in jail,” the judge concluded that “[t]he impeachment information contained in Adams's medical records was more important than other ‘impeachment’ evidence presented at trial.” She recommended granting relief because “[t]here is a reasonable probability that the outcome of the trial would have been different had applicant impeached Adams's false testimony that he did not have hallucinations.”


A. Standard of Review

“On post-conviction review of habeas corpus applications, the convicting court is the ‘original factfinder,’ and this Court is the ultimate factfinder.”12 Thus we generally defer to the convicting court's findings of fact that are supported by the record .13 We also afford that same level of deference to a habeas judge's ruling on mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.14 However, “[w]hen our independent review of the record reveals that the trial judge's findings and conclusions are not supported by the record, we may exercise our authority to make contrary or alternative findings and conclusions.”15 And we review de novo “mixed questions of law and fact” that do not depend upon credibility and demeanor.16

We review factual findings concerning whether a witness's testimony is perjurious or false under a deferential standard, but we review the ultimate legal conclusion of whether such testimony was “material” de novo.17

B. Habeas review: The issue in false-testimony claims is “materiality” not “harm.”

Generally, our review of a habeas corpus claim involves a two-pronged inquiry. First, we decide if the applicant has established a cognizable constitutional violation.18 Second, if a constitutional violation is shown, we determine whether the applicant was harmed by the error.19 An applicant demonstrates such harm with proof “by a preponderance of the evidence that the error contributed to his conviction or punishment.”20

However, habeas claims challenging the use of false testimony are reviewed under a slightly different analysis. The State's use of material false testimony violates a defendant's due-process rights under the Fifth and Fourteenth Amendments to the United States Constitution.21 Therefore, in any habeas claim alleging the use of material false testimony, this Court must determine (1) whether the testimony was, in fact, false, and, if so, (2) whether the testimony was material.22

The second prong in a false-testimony claim is materiality, not harm. Only the use of material false testimony amounts to a due-process violation. And false testimony is material only if there is a “reasonable likelihood” that it affected the judgment of the jury.23 Thus, an applicant who proves, by a preponderance of the evidence, a due-process violation stemming from a use of material false testimony necessarily proves harm because a false statement is material only if there is a reasonable likelihood that the false testimony affected the judgment of the jury.24 The applicant must still prove his habeas-corpus claim by a preponderance of the evidence, but in doing so, he must prove that the false testimony was material and thus it was reasonably likely to influence the judgment of the jury.

C. Is the testimony false?

Determining whether testimony is false is distinct from the materiality inquiry.25 This Court has consistently held that testimony “need not be perjured to constitute a due process violation; rather, ‘it is sufficient that the testimony was ‘false.’ “26 This due-process claim is “not aimed at preventing the crime of perjury-which is punishable in its own right-but [is] designed to ensure that the defendant is convicted and sentenced on truthful testimony.”27 Neither a witness's nor the State's good or bad faith is relevant to a “false-testimony due-process error analysis.”28 The proper question in a false-testimony claim is whether the particular testimony, taken as a whole, “gives the jury a false impression.”29


A. Were Adams's statements denying any auditory or visual hallucinations false?

The habeas judge's finding that one portion of Adams's testimony was false is supported by the record.30 At trial, the State asked Adams if his mental illness “has ever caused [him] to have any type of audial [sic] or visual hallucinations.” Adams responded: “Not at all. No, sir, not at all.”31 This testimony was flatly incorrect.32 Evidence that Adam's suffered from auditory hallucinations includes:

• On July 28, 2004, Adams reported to MHMRA that “voices ․ tell him to hurt himself” and that he could not sleep because “the voices keep him awake.”

• While at TDCJ, Adams reported “voices telling me to hurt other people and thinking people were out to kill me.”

• “While confined at HCJ on October 16, 2007, Adams reported that he ‘was trying to kill himself and having auditory hallucinations.’ “

• In 2007, Adams reported to MHMRA that he was “hearing his father's voice.”

• In 2008, just three months before sending his first letter offering to testify against applicant, Adams again reported hearing “voices inside [his] head.”

• On December 14, 2008, just two days after testifying that he did not suffer from auditory or visual hallucinations, Adams told a mental-health clinic nurse that “he had a history of auditory hallucinations and bipolar disorder with psychotic features.”

It is clear that this portion of Adams's testimony was false; not only did he suffer from auditory hallucinations, but he suffered from these hallucinations at a critical momentwhile sharing a cell with applicant.

B. Was Adams's false testimony denying auditory hallucinations material?

Although one portion of Adams's testimony was clearly false, the record does not support the legal conclusion that this false denial of hallucinations was material to the jury's verdict. While Adams's false denial prevented the defense from impeaching his ability to accurately perceive and relate events because of hallucinations, we do not agree with the habeas judge that this potential impeachment evidence “was more important than other ‘impeachment’ evidence presented at trial.” The defense had already developed a plethora of impeachment evidence, including,

• Adams was on medication for a bipolar disorder.

• Adams had been arrested and convicted for multiple crimes, including burglary, evading arrest, theft of a firearm, possession of crack cocaine, and forgery. He was a professional crook.

• Adams had a strong motive to testify against applicant: his third-degree felony charge was reduced to a misdemeanor, and he was released for time served.

• Adams read the indictment against applicant and knew that the indictment alleged “suffocating” the complainant, as one cause of death.

• Adams sent multiple letters to the district attorney, asking to testify against applicant in exchange for a deal.

• Adams failed to appear to testify against applicant. He was taken into custody and brought into the courtroom handcuffed.

In sum, the defense had ample ammunition at trial to argue that Adams was a thoroughly discredited and dishonest witness who should not be believed on any topic. That is precisely what the defense did argue.

Further, the State corroborated many of the facts to which Adams testified, severely limiting any impeachment value the hallucination evidence could have had. Adams testified that applicant had purchased an engine hoist and attempted to use pesticides to cover the smell. The State introduced evidence showing the existence of the engine hoist, pesticides, and deodorizers. Adams also knew that applicant's victim had stolen exactly $14,000 while purchasing a “car” in Dallas. The State presented multiple witnesses who testified that Jerry had stolen that exact amount of money from applicant and that purchasing a car is slang for buying meth. It is unlikely that any jury would believe that Adams received this accurate and corroborated information from some auditory hallucination.

And Adams's long history of auditory hallucinations were “persecution” hallucinations. All of them revolved around voices telling him to hurt himself or other people. They were not “descriptive” hallucinations in which voices relayed specific information to him. Here, Adams never testified that applicant was trying to hurt him or that he was trying to hurt applicant. Indeed, Adams's testimony was of the Sgt. Friday “Just the facts, ma‘am” variety, and he never expressed any negative emotions or feelings toward applicant. As the prosecutor noted in his closing argument, Adams “didn't embellish. He didn't say this was over drugs․ If he was making up his testimony don't you think he would have fitted it a little bit better?”

Finally, applicant's conviction was supported by an abundance of evidence unrelated to Adams's testimony. That evidence included,

• Testimony by several of applicant's friends that Jerry stole $14,000 from applicant;

• Testimony that applicant was incredibly angry at Jerry and reached out to mutual friends to locate him;

• Testimony that applicant formulated several schemes to “scare” Jerry, including a scheme to drug him, tie him up, and forcibly bring him to Houston;

• Testimony that Jerry was going to see applicant on the day he disappeared;

• The fact that Jerry's body was discovered in applicant's car, which was parked in applicant's garage;

• The fact that Jerry's arms and legs were bound, that his wrists were bound with metal shackles, rope, chains, and wire, and that duct tape circled his neck;

• The evidence that applicant attempted to cover the smell from Jerry's decomposing body;

• Testimony that applicant was found next to a police scanner, tuned to the police's radio frequency;

• Applicant's repeated lies to his neighbors and the police, claiming that the smell from his garage was caused by rotting meat hidden by his roommate;

• The Medical Examiner's testimony that Jerry's death was a homicide; and

• The Medical Examiner's testimony that disarticulating bones in Jerry's neck could have been caused by strangulation.

We do not agree that Adams's testimony was necessary to prove intentional murder. A jury may rely on circumstantial evidence to prove a defendant's guilt.33 Applicant had a strong motive to murder Jerry, and “[m]otive is a significant circumstance indicating guilt.”34 Applicant's intent to commit murder may also be inferred from circumstantial evidence, including his acts and words,35 such as his attempts to persuade others to help him kidnap Jerry to make him pay back the stolen money, the four different types of bindings on Jerry's wrists, and the use of duct tape over Jerry's mouth that could have caused his asphyxiation. In addition, “[a]ttempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt.”36 Applicant's attempts to conceal Jerry's body and his implausible explanations to police are strong evidence of applicant's consciousness of guilt. Jerry was found in the trunk of applicant's car, which was parked in applicant's garage. Jerry had been concealed in this trunk for many weeks. Applicant's garage contained deodorizers, pesticides, and baking soda, demonstrating that he was attempting to conceal the odor. The evidence showed that applicant stayed in the townhouse the entire time Jerry's body was in his trunk. When asked about the smell, applicant either did not respond or made up stories about his roommate leaving rotting meat in the house. This body of evidence, especially when coupled with applicant's motive to kill Jerry, is sufficient to prove that applicant intentionally murdered Jerry.

Given all of the circumstantial evidence, it is very unlikely that Adams's testimony was the tipping point. Therefore we conclude that applicant has not proven his habeas-corpus claim by a preponderance of the evidence. He has failed to show that Adams's false testimony about his auditory hallucinations was “material” such that there is “a reasonable likelihood” that this false testimony affected the jury's judgment.37 We therefore deny relief.

We filed and set this case to determine whether the State's unknowing use of false testimony calls for the same standard of materiality as the State's knowing use of false testimony. The Court appears to sidestep this issue, but to the extent the Court's opinion can be construed as weighing in on the issue, it comes to the wrong conclusion.

The Court says that the standard of materiality for the State's use of false testimony is “a reasonable likelihood that it affected the judgment of the jury” and, in some parts of its materiality discussion, it cites to Giglio v. United States1 and to Ex parte Fierro.2 Giglio appears to have used the Napue3 standard on the ground that a deliberate deception occurred in that case.4 Fierro involved the knowing use of false testimony and employed the Napue standard of materiality, though it also employed a more onerous harm standard because the claim, presented for the first time on habeas, could have been presented at trial and on direct appeal.5 The Supreme Court, which has framed the Napue standard as “any reasonable likelihood that the false testimony could have affected the jury's verdict,” has held that the standard is essentially the same as the Chapman6 harmless error test for constitutional errors on direct appeal.7 The Chapman standard has been framed as “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” or whether a court is convinced “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”8 The Napue/Chapman standard is the standard of materiality that applies to claims involving the State's knowing use of false testimony.9

The Court does not dispute the habeas trial court's conclusion that today's case involves the State's unknowing use of false testimony. It is unclear to me whether the Court's use of the “reasonable likelihood” language (and citations to Giglio and Fierro ) is intended to signify the use of Napue/Chapman standard or whether the Court's omission of the word “any” from the standard is intended to signify that a different, less-favorable-to-the-defendant standard is being employed. I write separately to emphasize that the standard of materiality for the State's unknowing use of false evidence (a claim not recognized by the Supreme Court) should be higher than the standard employed by the Supreme Court for the State's knowing use of false evidence.

A. There are good reasons for having different standards for the knowing versus unknowing use of false evidence.

There are three good reasons for imposing a higher standard of materiality for unknowing use than for knowing use: (1) state action, (2) finality, and (3) the analytical nature of the claims. First, I address state action. The United States Constitution's requirement of due process that is applicable to the States is found in the Fourteenth Amendment.10 A necessary component of any Fourteenth Amendment due-process claim is “state action.”11 Even the most outrageous behavior by a private citizen will not by itself establish “state action” for due-process purposes.12 When the prosecution knowingly uses false testimony, state action is self-evident.13 Even when a witness is not a member of the prosecution team, state action is arguably present if the witness is a state-government employee testifying as such.14 But when the witness is a private citizen, as in the present case, state action is supplied by neither the prosecutor's intent nor the witness's status. It must, then, be supplied by the fact that the false evidence has actually adversely affected state judicial proceedings.15 A mere possibility that the proceedings have been affected is not enough.

The second reason is finality. A prosecutor who knowingly uses false evidence should understand that the case is a ticking time bomb that is likely to explode the moment the defendant discovers what has happened. The State can hardly maintain a significant expectation of finality in proceedings in which the prosecutor has acted in such a way.16 What the State has is a minimal interest in finality: the conviction is maintained if there is no reasonable possibility that the false evidence would have changed the result. The State's finality interests may become more significant if the defendant fails to raise the claim at his first opportunity or if the defendant is dilatory in raising his claim. But so long as the defendant has raised a knowing-use claim at his first opportunity and with reasonable promptness, the State's finality interest in the conviction in the face of such a claim is minimal.

But the State's interest in finality is substantial when the use of false testimony is unknowing. In that situation, the State has not tried to subvert the system and may be as likely as the defendant to be surprised by the revelation that a witness has lied or that some testimony or other evidence introduced at trial was false. And the adversary system is designed to ferret out the truth from conflicting evidence.17 Sometimes apparent conflicts in testimony can be reconciled, but it is often the case that not all of the testimony can be the truth. Fact witnesses may have irreconcilable accounts about what happened, or there may be a battle of experts who take diametrically opposed positions. We generally expect the adversary system to handle these types of conflicts, even when we know that someone must not be telling the truth.18 If the State knows certain evidence is false, we expect the State to disclose that fact, but if the State is not aware of the falsity, we generally expect the adversary system to deal with it. It stands to reason, then, that we would want to overturn the results of a trial on the basis of the unknowing use of false evidence only if we are convinced that the false evidence probably changed the result.19

The third reason is the analytical nature of the claims. The knowing use of false evidence is prosecutorial misconduct.20 In addition, while the knowing use of false evidence can be characterized as misconduct subject to a materiality standard, it can also be legitimately characterized as “error subject to harmless-error review,”21 with the Chapman test simply being the harm standard that applies to any constitutional error that is not structural.22 That is, a prosecutor's knowing use of false evidence could itself be seen as the constitutional violation, without regard to materiality, with that constitutional violation then being subject to a harm analysis. By contrast, the unknowing use of false evidence is not prosecutorial misconduct and cannot, by itself, be legitimately characterized as a constitutional error subject to harmless error review. A defendant cannot be said to have suffered a due process violation merely because a private citizen has testified falsely. Only when a materiality standard is added—a standard more onerous than the constitutional harmless error test—can the unknowing use of such false evidence rise to the level of a due process violation.

B. The holdings in out-of-state cases confirm a higher materiality standard for the State's unknowing use of false evidence than for knowing use.

The Supreme Court has never held that the State's unknowing use of false evidence can constitute a due process violation.23 Aside from Texas, several jurisdictions, led by the Second Circuit, have decided that it can, with a higher standard of materiality than the standard for knowing use.24 Some courts have declined to address the issue on the ground that the defendant had not satisfied the rigorous materiality standard set forth by the Second Circuit in Sanders.25 The Fifth, Seventh, and Eleventh Circuits, along with the States of Illinois and Nebraska, have expressly rejected the Second Circuit's expansion of due process to the unknowing use of false evidence and hold, instead, that due process is violated only if false evidence is knowingly used by the prosecution.26 The Ninth Circuit appears to recognize a due process violation if the prosecution knew or should have known that the testimony was false.27 Whether that court recognizes a due process claim when the prosecution is completely without fault is unclear, but the cases in which such a claim may be recognized involve facts that would meet the Second Circuit's high standard of materiality.28

With the possible exception of the Ninth Circuit, I am unaware of any jurisdictions applying the Chapman standard of materiality to the unknowing use of false evidence. Instead, courts that recognize a due process violation based upon the unknowing use of false evidence, excepting possibly the Ninth Circuit, seem to uniformly agree that a due-process violation based on unknowing use requires a higher standard of materiality. Given that it is currently a controversial proposition to even recognize a due-process violation flowing from the State's unknowing use of false evidence, the higher standard of materiality is an important factor used to overcome objections to such recognition.29

I respectfully concur in the Court's judgment.

COCHRAN, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, HERVEY and ALCALA, JJ., joined.

KELLER, P.J. filed a concurring opinion in which PRICE, J., joined. KEALSER, J., concurred.

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